STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALVIN WRIGHT, )

)

Petitioner, )

vs. ) CASE NO. 89-1662

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on June 15, 1989, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Calvin Wright, pro se

Post Office Box 11433 Tampa, Florida 33680

For Respondent: Donald J. Bradley, Esquire

Post Office Box 1437

St. Petersburg, Florida 33731 STATEMENT OF THE ISSUES

The issue in this case is whether the Department of Administration (Respondent) unlawfully discriminated against Calvin Wright (Petitioner), based upon race, by terminating him on December 31, 1987.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf, and introduced four exhibits. The Respondent called Ron Matson, Petitioner's former supervisors David Scott and Joanne Llewellyn, Petitioner's former co-workers, and Harvey Stricklin. The deposition of John Whalen was offered by the Respondent, and accepted in lieu of live testimony. Respondent introduced eight additional exhibits.

No transcript of the hearing was filed. The parties were allowed to file proposed recommended orders within ten days after the hearing. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. Petitioner began employment with Respondent as a Veterans' Affairs Officer I, on August 10, 1987. At all times material hereto, Petitioner was in probationary status.

2. Between August 10, 1987, and November 6, 1987, Petitioner was given extensive and thorough training and counseling by the Respondent on his job duties and responsibilities, as well as information about relevant provisions of Florida and Federal laws and rules pertaining to his job. The training and counseling which Petitioner received was the same as was received by other Veterans' Affairs Officers.

   
   

3. From September 8 through 11, 1987, John Whalen conducted a course, "Introduction to Veterans Benefits", which Petitioner attended. The course was given over a four day period rather than the usual five day period, because Labor Day fell during the week of the course. However, since there was only one other student in the course, Whalen testified that he was able to cover all of the material and offer special assistance to students in attendance, and this was his normal procedure whenever there were only two students in a course. Following the course, Petitioner scored 91 out of 100 on a test given covering the course material.

   
   

4. Petitioner was allowed to take time during the work day to review materials about veterans' benefits, and was allowed to ask questions of his supervisor, Ron Matson, at the end of each day whenever there was something he did not understand. Matson also conducted numerous counseling sessions with Petitioner in an attempt to explain office procedures and requirements to Petitioner.

   
   

5. On or about August 10, 1987, and again on December 1, 1987, Petitioner was provided with copies of the "Essential Elements" and "Performance Standards" for his position. On or about September 2, 1987, he also received a "Career Service System Position Description" for the position which he held. He signed for these documents, and thereby acknowledged receipt.

   
   

6. Petitioner's performance was evaluated by Ron Matson, his supervisor, on November 6, 1987, as "Below Performance Standards". Matson met with Petitioner on or about November 29, 1987, and discussed this evaluation. Petitioner declined the opportunity to offer any comments at that time.

   
   

7. A second performance evaluation was prepared for Petitioner during December, 1987, and it also reflected performance "Below Standards". Petitioner signed this second performance appraisal on December 31, 1987. This was the second "Below Standards" appraisal received by Petitioner while in probationary status.

   
   

8. Petitioner was terminated by the Respondent on December 31, 1987, due solely to his documented failure to perform basic and essential tasks of his job. Specifically, numerous and repeated errors were found in veterans' claims submitted by the Petitioner, and he demonstrated little, if any, ability to retain and recall knowledge and instructions to which he had been exposed in training and counseling sessions. The work he did complete was filled with typographical and other clerical errors, which then had to be brought to his attention and corrected. He was inordinately slow in the performance of his duties, thereby delaying the submission of claims, and repeatedly missing deadlines. As demonstrated at hearing, Petitioner has a minimal ability to communicate, and this impaired his ability to serve veterans who needed assistance in handling claims and other matters. His attitude toward his supervisor and co-workers was uncooperative.

9. Petitioner asserts that he was treated differently from other employees. He complains that he was required to wear a tie, but it was established that office policy required employees to either wear a tie with a dress shirt, or a sport shirt that did not require a tie. This was explained to Petitioner by Ron Matson, and was applied to all employees uniformly. He also complains that Matson was unfriendly and aggressive toward him, but the evidence establishes that Matson did not treat Petitioner unfairly. He did find it necessary to be assertive with Petitioner because of his demonstrated inability to either understand or follow directions. However, Matson's actions were appropriate and justified.

   
   

10. Petitioner also asserts that he was not allowed to work a flex schedule, but the evidence establishes that employees in probationary status are always required to work 8:00 A.M. to 4:30 P.M. in order to maximize training opportunities during regular business hours. Finally, he claims he was not allowed to take coffee breaks, but his co-workers refuted this claim. Petitioner was invited to take breaks with his co-workers, but instead he chose to stay at his desk and read.

    
    

11. On January 5, 1988, Petitioner filed a complaint of discrimination against Respondent alleging that he had been terminated due to his race. Petitioner is black, and no other employees in the office in which he worked are black. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. This case is governed by the provisions of the Florida Human Rights Act of 1977. Sections 760.01 through 760.10, Florida Statutes.

    
    

13. The Petitioner bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Cord. v. Green, 411 U.S. 792 (1973); Teamsters v. United States, 431 U.S. 324 (1977). If the Petitioner sustains his initial burden, the Respondent would then have to establish some legitimate,

    non-discriminatory reason for the action taken in order to rebut the inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S.

    248 (1981). Thereafter, if Petitioner can show that Respondent's actions were simply a pretext for discrimination, Petitioner may still prevail. McDonnell Douglas, at 804-805; Burdine, at 256. See also Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA -1986).

    
    

14. There is no evidence in the record to support Petitioner's allegation of discrimination based upon race. Respondent treated Petitioner the same as other employees in the position of Veterans' Affairs Officer I, and provided ample and sufficient training and counseling opportunities. He was evaluated on two occasions while on probationary status, and on each occasion his performance was rated "Below Standards". His unsatisfactory performance resulted in delay in filing veterans' benefit claims, and required him to correct repeated errors and omissions. His attitude was uncooperative, and he demonstrated little knowledge about his duties, or ability to retain instruction to which he was exposed.

    
    

15. Petitioner was provided with a specific listing of duties which he had to perform in a satisfactory manner, and he failed to reach a level of

    proficiency which would have justified Respondent retaining him in his position. He was on probationary status at all times material hereto.

    
    

16. Respondent has rebutted any inference of discrimination which might be drawn in this case. There was a reasonable basis for terminating Petitioner after two unsatisfactory performance evaluations. His clearly demonstrated inability to perform the job of Veterans' Affairs Officer I is a legitimate, nondiscriminatory reason for not allowing Petitioner to continue in the employment of the Respondent, as specifically authorized by Section 760.10(8)(b), Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED.

DONE AND ENTERED this 12th day of July, 1989, in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1989.

APPENDIX

(D0AH CASE NO. 89-1662)

The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact.

Rulings on the Respondent's Proposed Findings of Fact:

1. Rejected as simply a conclusion of law.

2. Adopted in Finding of Fact 11.

COPIES FURNISHED:

Calvin Wright

P. O. Box 11433 Tampa, FL 33680

Donald J. Bradley, Esquire

P. O. Box 1437

St. Petersburg, FL 33731

Margaret Agerton, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Donald A. Griffin Executive Director

Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Docket for Case No: 89-001662

Orders for Case No: 89-001662